Scott v. Scott [1913] is an important decision of English court on Trial in Camera and Open Court. Indian Supreme Court referred this case in its judgments regarding open courts.
In that case a Judge of the Divorce Court had made an order that a petition for a decree of nullity of marriage should be heard in camera, but after the conclusion of the proceedings, one of the parties published to third parties a transcript of the evidence given at the hearing of the suit; and the question which arose for decision was whether by such publication, the party concerned had committed contempt.
The House of Lords held that assuming that the order for hearing the case in camera was valid, it was not effective to enjoin perpetual silence on all persons with regard to what took place at the hearing of the suit, and, therefore, the party publishing the evidence was not guilty of contempt of Court.
Dealing with the question about the power of an ordinary court of justice to hear in private, Viscount Haldane, L.C., observed that whatever may have been the power of the ecclesiastical courts, the power of an ordinary court of justice to hear in private cannot rest merely on the discretion of the Judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private.
If there is any exception to the broad principle which requires the administration of justice to take place in open court, that exception must be based on the application of some other and over-riding principle which defines the field of exception and does not leave its limits to the individual discretion of the Judge.
Looking at the problem from another point of view, Viscount Haldane, L.C. observed that while the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions. By way of illustration, reference was made to two cases of wards of court and of lunatics where the court is really sitting primarily to guard the interest of the ward or the lunatic.
In such matters, the jurisdiction of the court was in a sense, parental and administrative. That is how the broad principle which ordinarily governs open public trial, yields to the paramount duty which is the care of the ward or the lunatic. Similarly, in regard to litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, trial in camera would be justified, because in such a case, justice could not be done at all if it had to be done in public.
In other words, unless it be strictly necessary for the attainment of justice, there can be no power in the court to hear in camera either a matrimonial cause or any other where there is a contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to show that the evidence can be effectively brought before the court in no other fashion.
In either case, he must satisfy the court that by nothing short of the exclusion of the public can justice be done It would thus be noticed that according to Viscount Haldane, L.C., though it is of the essence of fair and impartial administration of justice that all causes must be tried in open court, cases may arise where the court may be satisfied that evidence can be effectively brought before it only if the trial is held in camera; and in such cases, in order to discharge its paramount duty to administer justice, the court may feel compelled to order a trial in camera.
The same principle has been enunciated by the other Law Lords, though they have differed in their approach as well as in their emphasis. We do not propose to refer to the statements made in the speeches of the other Law Lords, because it is clear that on the whole, the principles laid down by Viscount Haldane, L.C., appear to have received general approval from the other Law Lords.
There are, no doubt, certain observations in the speeches of some Law Lords which seem to suggest that there would be no power in the court to hear a case in camera, except in the recognised cases of exceptional character to which Viscount Haldane referred. Lord Shaw, for instance, observed that,
“I am of opinion that the order to hear this case in camera was beyond the power of the Judge to pronounce. I am further of opinion that, even on the assumption that such an order had been within his power, it was beyond his power to impose a suppression of all reports of what passed at the trial after the trial had come to an end”.(p. 29).
It must be remembered that the order with which the House of Lords was dealing, had imposed a perpetual prohibition against the publication of the proceedings in court; and naturally, there was unanimity in the view expressed by the House of Lords that such a drastic order was not justified. That is why the conclusion of the House of Lords was that by publishing the proceedings at the end of the trial, the party concerned had not committed contempt of court.
It would thus be clear from the decision of the House of Lords in Scott v. Scott that courts of justice have no power to hear cases in camera even by consent of the parties, except in special cases in which a hearing in open court might defeat the ends of justice.